By Andrew Harmon
Originally published on Advocate.com April 02 2012 3:16 PM ET
WASHINGTON — A group of married, same-sex binational couples has sued the federal government, claiming that the Defense of Marriage Act, which has long barred equal immigration sponsorship privileges, is unconstitutional.
Five couples — one of whom first met more than 30 years ago, another who had shuffled between the United States and South Africa for over a decade to avoid breaking immigration law — filed suit earlier today in U.S. District Court for the Eastern District of New York. They allege that the 1996 law, deemed unconstitutional and unworthy of further court defense in 2011 by the Obama administration, violates their equal protection rights under the U.S. Constitution.
Multiple challenges to DOMA are already well under way in the courts: An appeals court panel in Boston is set to hear arguments Wednesday in one such case, where a judge ruled nearly two years ago that a section of the law prohibiting federal recognition of same-sex marriages is unconstitutional.
But the new case is among the first to challenge the antigay law as it applies to immigration rights and is the first to be filed by an LGBT rights organization on behalf of gay immigrant families. A year ago the group Immigration Equality first announced it was planning its lawsuit against DOMA, which denies Americans the opportunity to sponsor a foreign-born same-sex partner for permanent residency.
Three of the couples Immigration Equality represents in the case live in New York State. A fourth lives in Connecticut, while a fifth resides in Vermont. All three states have enacted marriage equality.
“Whether the federal government recognizes a couple’s marriage can determine whether a family may remain in the United States and live together, or may be torn apart,” attorneys for the couples wrote in the lawsuit against named defendants Atty. Gen. Eric Holder, Secretary of Homeland Security Janet Napolitano, and officials with U.S. Citizenship and Immigration Services (click here for a PDF of the complaint). “The ability to maintain their families together is, of course, of the highest concern for the plaintiff couples and for thousands of other binational couples in this country.”
DOMA’s discriminatory nature as it applies to same-sex couples, the attorneys wrote, directly conflicts with the long-standing principle in immigration law of keeping families together.
Immigration Equality executive director Rachel Tiven said Monday that her group had long sought an out-of-court resolution — namely, for immigration officials to put a hold on deciding green card petitions submitted by binational couples rather than reject them outright. “We spent a year working very diligently with a lot of different people at both DOJ and [the Department of Homeland Security] to find a solution,” she said.
The back-and-forth Tiven described included a January meeting in Washington, D.C. between administration officials and LGBT legal advocates. Despite the administration’s position against DOMA, officials stood firm against putting a blanket hold on green card applications for members of gay married couples. Publicly, officials have maintained for months that while the administration believes DOMA to be unconstitutional, it must continue to enforce the law and therefore has an obligation to reject such petitions.
That position has duly frustrated LGBT immigration advocates nationwide. “The Obama administration's continued refusal to stand up for lesbian and gay binational couples is a purely political calculation that denies security to thousands of LGBT families,” immigration attorney and Stop the Deportations cofounder Lavi Soloway said in February following news of the meeting.
A Justice Department spokesman could not be immediately reached for comment, though it’s likely that DOJ will decline to defend DOMA in Immigration Equality’s suit, as it has done with other DOMA suits that have been filed on behalf of various gay married couples, including military service members and their spouses. The House Republican-led Bipartisan Legal Advisory Group has intervened to defend such cases and will argue one, Gill v. Office of Personnel Management, before the First Circuit Court of Appeals in Boston later this week.
The new lawsuit is the third known case to challenge DOMA from an immigration standpoint. Last year an Indonesian man and his same-sex American spouse sued after the couple’s green card petition was denied. Another gay immigration case is currently pending in U.S. District Court for the Northern District of Illinois.
The binational couples who sued Monday have all filed for marriage-based green cards and have either received rejection letters for their applications or expect to receive them soon.
Kelli Ryan and Lucy Truman received theirs in the mail last week. Married two years ago in Connecticut, where they now live, the couple had sought permanent residency for Truman, a British citizen and immunologist who is currently on a postdoctoral fellowship at Yale University.
Connecticut senator Richard Blumenthal has previously spoken out for Ryan and Truman, writing in a November letter to Secretary Napolitano that the country “stands to lose two highly intelligent and talented women to the United Kingdom if Lucy — a talented clinician, scientist, and valuable member of our community — is not able to stay in the United States.” (Ryan is also an immunologist and works as a senior scientist for a pharmaceutical company in Ridgefield, Conn.)
But immigration officials rejected Ryan's green card petition for Truman, writing, “DOMA applies as a matter of federal law whether or not your marriage is recognized under state law. Your spouse is not a person of the opposite sex. Therefore under DOMA your petition must be denied.”
Ryan and Truman said despite the unwanted publicity that can come with participating in a high-profile legal case, the opportunity to stand up for other binational couples — particularly ones who have children or who are not so lucky as to obtain a work visa, as Truman has — prompted their decision to sue.
“We’re both proud to do this,” Ryan said. “I think it’s one of the biggest things we’ve ever done in our lives. We find that when we talk to people about this, they’re shocked that I can’t sponsor Lucy. This particular aspect of DOMA may affect a smaller percentage of people, but the impact of the law in these cases is huge.”
The legal complaint notes in detail each couple’s love story: Where they met, when they married, and how the federal government has served as a roadblock in their attempts to remain together. Lead plaintiffs Edwin Blesch and Timothy Smulian, who also have seen their green card petition denied, have gone to extraordinary lengths to live together, splitting time between South Africa and New York State (where they now live) until just a few years ago, when Blesch was no longer able to do so due to declining health.
The case has been assigned to Chief U.S. District Judge Carol Bagley Amon, who was nominated to the federal bench by President George H.W. Bush in 1990. The law firm Paul, Weiss, Rifkind, Wharton, and Garrison, which has served as outside counsel in an American Civil Liberties Union case against DOMA, is co-representing the couples on a pro bono basis.